Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)

johnhall johnhall@isomedia.com
Wed, 5 Mar 2003 17:42:32 -0800


> From: fork-admin@xent.com [mailto:fork-admin@xent.com] On Behalf Of
> Russell Turpin

> Wasn't
> he AG when the Supreme Court decided against the
> virtual porn restrictions in COPA II?

He might have been, but didn't those restrictions predate his tenure in
office?  If so why speak of an AG smackdown.

> John Hall, quoting findlaw:
> >"In this case [Griswold - jmh], both opinions seemed to concur that
the
> >fundamental right claimed and upheld was derivative of several
express
> >rights and in this case, really, the Ninth Amendment added almost
nothing
> >to the argument."
> 
> I am no lawyer, but that interpretation seems
> prima facie contrary to the text of Goldberg's
> concurring opinion. Here is an excerpt of the
> opinion itself.

We might be arguing angels on a pin.  Findlaw said they cited the 9th
but they didn't _need_ it.  All they needed was "penumbra" emanations.
Specifically, they didn't use the 9th to assert rights they didn't
assert were part of a different amendment anyway.

> Turpin:
> >>The Constitution is meaningless if there is no
> >>effective mechanism for its interpretation.
> 
> Hall:
> >We aren't arguing that. We are arguing whether the court must
consciously
> >restrict its decisions
> >to the text and what the text meant at the time it was written ..
> 
> I'm not sure what THAT means. 

In Bork's definition of original intent, he didn't require a judge to
channel the framers.  He only required them to determine, to the best of
their ability, what those words meant to the people who were ratifying
the document.

> Hence, the meaning HAS
> to be worked out on an ongoing basis.
> 
> The Supreme Court makes significant rulings
> precisely in those cases where this is required.
> Where the explanation to date is already adequate
> and clear, the lower courts are expected to apply
> it.

Except when they simply decide to change it?  The CT law in Griswold was
86 years old at the time.

> >As an example, I'd freeze "cruel and unusual" to the meaning as
> understood
> >in the 1790s.
> 
> Again, I'm not sure what that means. Does it mean
> that nothing done in the 1790s that the courts
> didn't then rule "cruel and unusual" (after being
> so challenged?) 

It means that nothing which would not have been considered cruel and
unusual then (like, for example, the death penalty) should questioned
now.

> But what
> about questions that didn't exist then? Or
> practices that simply were never challenged, since
> courts can rule only on cases presented to them?

Legitimately new questions require new interpretation.

> Or does it might mean that a 1790s view, somehow
> defined, should be applied to current society,
> with its vastly different material circumstance
> and knowledge? 

Material circumstance shouldn't matter.  Knowledge might.

> An 18th century "reasonable man"
> who then thought it appropriate to punish someone
> made predatory by a brain tumor likely would have
> a change of mind once he learned that there is an
> organic, demonstrable cause of the behavior that
> was surgically correctable:

Mostly I'd let the legislature decide.  I wouldn't veto unless it was a
rather clear violation of 18C standards.  I don't believe in evolving
standards of decency being used by the modern court to veto the
different opinion of such standards by a modern legislature.

> I'm just questioning
> what seems to me an overly simplified notion of
> how the Constitution might work.

It isn't necessarily simple.  Bork claimed that Sen. Hatch, who he has
quite a lot of respect for, got confused by the following point:

Bork argued that the legislature was entitled to define obscenity.
However, although the court was required to show deference to that
definition it was also entitled to its own definition.  The court could
use its own definition, for example, to prevent a legislature from
declaring Marx's works obscene.

It has been said that "hard cases make bad law".  I'd give the
legislature the ties, hard cases, and close calls.  I'd use the veto
only in fairly clear cases.